Dowell v. Wabash Ry. Co.

• Decision Date: 21 February 1916
• Docket Number: No. 11791.,11791.
• Citation: 190 S.W. 939
• Parties: DOWELL v. WABASH RY. CO.
• Court: Missouri Court of Appeals

190 S.W. 939

DOWELL v. WABASH RY. CO.

No. 11791.

Kansas City Court of Appeals. Missouri.

February 21, 1916.

On Motion for Rehearing, December 18, 1916.

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

"Not to be officially published."

Action by Thomas J. Dowell against the Wabash Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded.

J. L. Minnis, of St. Louis, Jones & Conkling, of Carrolton, and J. M. Davis, of Chillicothe, for appellant. Scott J. Miller, of Chillicothe, for respondent.

ELLISON, P. J.

Plaintiff's action is in damages flowing from personal injury alleged to have been received through the negligence of defendant. He recovered judgment in the trial court.

It was conceded that defendant was an interstate carrier, and the evidence showed that plaintiff was engaged in its service as a section man, and his particular employment when hurt was repairing a spur or side track leading from the main track to scales on which cars loaded with freight destined to other states were weighed to ascertain if they were overloaded. We think he was engaged in interstate service. Hardwick v. Railroad, 181 Mo. App. 156, 161, 168 S. W. 328.

Old ties were being removed and new ones substituted, the old spikes being used to fasten the rails to the new ties. The spikes were scattered along the side of the track about as they had been pulled out of the old ties. The metal maul or hammer used to drive the spikes was very much battered and its face was quite uneven. It had a defective handle made by the foreman out of a stick he cut from the brush nearby. Plaintiff doubted whether the hammer was safe, whereupon the foreman told him there was no other. So of the spikes; there were no other than the old ones and there was not enough for choice between them — all had to be used. While the case, in its facts, is strikingly like that of Miller v. Railroad, 175 Mo. App. 349, 162 S. W. 290, a case instituted under the state law, yet there are distinguishing features that require a different ruling from that made in that case. In that case the servant was using the same hammer he had been using and it had become defective in his hands; and the spikes were in quantity sufficient for him to make choice of the good from the bad, uninfluenced by the foreman. While in this case the handle of the hammer was one improvised by the foreman who, in effect, ordered plaintiff to use it and the evidence tends to show that he had no choice of spikes. Taking his testimony as true, the proper inference is that he was ordered to use all the spikes, good or bad, as well as the hammer.

But plaintiff's instruction on the measure of damages is attacked. After having stated therein that although plaintiff may have been guilty of contributory negligence, that fact would not bar a recovery, the following was added:

"And in making up your verdict you will on that account diminish the amount of your verdict he should have received had he not been guilty of contributory negligence in the amount as you may believe his negligence contributed to his injury."

This was erroneous. Seaboard Air Line v. Tilghman, 237 U. S. 499, 35 Sup. Ct. 653, 59 L. Ed. 1069; Norfolk R. R. Co. v. Earnest, 229 U. S. 114, 33 Sup. Ct. 654, 57 L. Ed. 1096, Ann. Cas. 1914C, 172; N., C. & St. L. R. R. Co. v. Banks, 156 Ky. 609, 161 S. W. 554; ...